tion are made by the marshal, who returns the funds to the court to be distributed by its order.1

1 Phillimore, On. Int. Law, vol. iii., §§ 493-497; Marriott's Forms, pp. 194, 196.

The master, of an enemy's vessel condemned as prize, is not entitled to be repaid out of the proceeds of the vessel, for disbursements made by him for her use.-The 'Velasco,' Blatchf. Pr. Cas., 54.

Prize cargoes sent in for adjudication in a transport chartered by the government, are not chargeable with the payment of freight or any part of the vessel.-The 'Undaunted,' 2 Sprague, 194.

444

CHAPTER XXXIII.

RIGHTS OF MILITARY OCCUPATION.

1. Military occupation and complete conquest distinguished-2. When rights of military occupation begin-3. Submission sufficient-4. Effect upon political laws-5. Upon municipal laws-6. Punishment of crimes in such territory—7. Laws of England instantly extend over conquered territory-8. Territory so occupied no part of the American Union, but a part of the United States with respect to other countries --9. Effect of this distinction-10. American decisions-11. Powers of the President respecting such revenues-12. Change of ownership of private property during military occupation-13. Laws relating to such transfers-14. Allegiance of inhabitants of occupied territory—15. Lawful resistance and insurrection-16. Implied obligation of the conquered-17. Of the conqueror-18. Right of revolution-19. Right of insurrection in war-20. Punishing military insurrections-21. Historical examples-22. Alienations of territory occupied by an enemy -23. Alienations made in anticipation of conquest-24. Private grants so made-25. Transfer of territory to neutrals-26. Effect of military occupation on incorporeal rights-27. Debts due to the government of the territory occupied-28. If former government be restored-29. Examples from ancient history-30. Examples from modern history.

§ 1. THE term conquest, as it is ordinarily used, is applicable to conquered territory the moment it is taken from the enemy; but, in its more limited and technical meaning, it includes only the real property to which the conqueror has acquired a complete title. Until the ownership of such property so taken is confirmed or made complete, it is held by the right of military occupation (occupatio bellica), which, by the usage of nations and the laws of war, differs from, and falls far short of, the right of complete conquest (debellatio, ultima victoria). These will form the subjects of the next two chapters. The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the constitution, or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession,

during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority, and such rules, are derived directly from the laws of war, as established by the usage of the world, and confirmed by the writings of publicists, and the decisions of courts-in fine, from the law of nations. But when the conquest is made complete, in whatsoever mode, the right to govern the acquired territory follows as the inevitable consequence of the right of acquisition, and the character, form, and powers of the government established over such conquered territory, are determined by the constitution and laws of the State which acquires it, or with which it is incorporated. The government established over an enemy's territory during its military occupation, may exercise all the powers given by the laws of war to the conqueror over the conquered, and is subject to all the restrictions which that code imposes. It is of little consequence whether such government be called a military or a civil government; its character is the same, and the source of its authority the same: in either case it is a government imposed by the laws of war, and so far as it concerns the inhabitants of such territory, or the rest of the world, those laws alone determine the legality, or illegality of its acts. But the conquering State may, of its own will, whether expressed in its constitution, or in its laws, impose restrictions additional to those established by the usage of nations, conferring upon the inhabitants of the territory so occupied privileges and rights to which they are not strictly entitled by the laws of war; and, if such government of military occupation violate these additional restrictions so imposed, it is accountable to the power which established it, but not to the rest of the world.1

1 Cocceius, De Jure Victoria, passim; Heffter, Droit International, §§ 131, 186; Fleming et al. v. Page, 9 Howard R., 603; Cross et al. v. Harrison, 16 Howard R., 164; Marcy to Kearny, June 11, 1847, Ex. Doc. No. 17, 31st Cong. Ist sess. H. R; Kamptz, Litteratur des Völk., § 307; Isambert, Ann. Pol. et Dips., Int., p. 115; Cushing, Opinions U. S. Att'ys Gen'l., vol. viii. p. 365; Gardner, Institutes, p. 208; Puffendorf, De Jure Nat. et Gent., lib. viii. cap. vi. §§ 17, 27; Vattel, Droit des Gens, liv. iii. ch. xiii. § 197

The Brussels Conference, 1874, declares:-Art 1. A territory is considered as occupied when it is placed actually under the authority of the hostile army. The occupation only extends to those territories where this authority is established and can be exercised. Art. 2. The authority of the legal power being suspended, and having actually passed into the hands of the occupier, he shall take every step in his power to re-establish and secure, as far as possible, public safety and social order.

Art. 3.

§ 2. We will here consider the question, when do the rights of military occupation begin, or how are we to fix the date of a conquest? Bouvier defines a conquest to be, 'the acquisition of the sovereignty of a country by force of arms, exercised by an independent power, which reduces the vanquished to the submission of its empire.' It follows, then, that the rights of military occupation extend over the enemy's territory only so far as the inhabitants are vanquished or reduced to submission to the rule of the conqueror. Thus, if a fort, town, city, harbour, island, province, or particular section of country belonging to one belligerent, is forced to submit to the arms of the other, such place or territory instantly becomes a conquest, and is subject to the laws which the conqueror may impose on it; although he has not yet acquired the plenum

With this object he will maintain the laws which were in force in the country in time of peace, and will only modify, suspend, or replace them by others if necessity obliges him to do so. Art. 4. The functionaries and officials of every class who at the instance of the occupier consent to continue to perform their duties, shall be under his protection. They shall not be dismissed or be liable to summary punishment ('punis disciplinairement') unless they fail in fulfilling the obligations they have undertaken, and shall be handed over to justice, only if they violate those obligations by unfaithfulness. Art. 5. The army of occupation shall only levy such taxes, dues, duties, and tolls as are already established for the benefit of the State, or the equivalent, if it be impossible to collect them, and this shall be done as far as possible in the form of, and according to, existing practice. It shall devote them to defraying the expenses of the adminis tration of the country to the same extent as was obligatory on the legal government. Art. 6. The army occupying a territory shall take possession only of the specie, the funds, and marketable securities, &c. ('valeurs exigibles'), which are the property of the State in its own right, the depots of arms, means of transport, magazines and supplies, and, in general, all the personal property of the State which is of a nature to aid in carrying on the war. Railway plant, land telegraphs, steam and other vessels, not included in cases regulated by maritime law, as well as depots of arms, and generally every kind of munitions of war, although belonging to companies or to private individuals, are to be considered equally as means of a nature to aid in carrying on a war, which cannot be left by the army of occupation at the disposal of the enemy. Railway plant, land telegraphs, as well as the steam and other vessels above mentioned, shall be restored, and indemnities be regulated on the conclusion of peace. Art. 7. The occupying State shall only consider itself in the light of an administrator and usufructuary of the public buildings, real property, forests, and agricultural works belonging to the hostile State, and situated in the occupied territory. It is bound to protect these properties ('fonds de ces propriétés") and to administer them according to the laws of usufruct. Art. 8. The property of parishes ('communes'), of establishments devoted to religion, charity, education, arts and sciences, although belonging to the State, shall be treated as private property. Every seizure, destruction of, or wilful damage to, such establishments, historical monuments, or works of art or of science, should be prosecuted by the competent authorities.

dominium et utile, he has the temporary right of possession and government. As this temporary title derives its validity entirely from the force of arms on the one side, and submission to such force on the other, it necessarily follows that it extends no further, and continues no longer, than such subjugation and submission extend and continue. Thus, if one belligerent take possession of a port, or town, or province of the other, he cannot, therefore, pretend to extend his government and laws over places or provinces which he has not yet reduced to submission, or, by reason of a particular possession, to claim a general control and authority. By occupying a port of an enemy's coast, we have a right, so long as we retain its possession, to exclude neutral vessels from such port, or admit them on such terms as to us may seem fit and proper; but we cannot exclude neutral vessels, or impose our regulations upon neutral commerce in ports of the enemy which are not in our possession. To extend the rights of military occupation, or the limits of conquest, by mere intention, implication, or proclamation, would be establishing a paper conquest, infinitely more objectionable in its character and effects than a paper blockade. 'The rule is,' says Wildman, 'that the whole is possessed by the occupation of a part, if an intention to appropriate the whole accompany such occupation, and all others be excluded from occupying the residue. Otherwise, possession of real property would be impossible, as it does not admit of manual apprehension or corporal incumbency in all its parts. Two persons cannot have several possessions of the same thing at the same time: such possession of one excludes the possession of another. Hence, if one be in possession, and another enter upon part which is not in the actual possession of the first, by such entry he gains possession of no more than he actually occupies. The constructive occupation of the owner is defeated by actual occupation, so far as it extends. Thus it is said by Celsus, if an enemy enter a territory by force of arms, it is in possession of so much only as it occupies. When he speaks of force, he supposes resistance on behalf of the sovereign, in defence of his possession. An army only possesses a country so far as it compels the enemy's forces to retire. The meaning of Paulus is probably the same, when he says that possession of part, with an appropriating mind, is possession of the whole, up to